Citation Nr: 0704271
Decision Date: 02/09/07 Archive Date: 02/22/07
DOCKET NO. 03-26 609 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to higher original evaluations for postoperative
residuals of a herniated nucleus pulposus of the L5-S1, rated
as 10 percent disabling from October 12, 2000, rated as 20
percent disabling from June 24, 2004, and rated as 40 percent
disabling from March 21, 2006.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and Mother
ATTORNEY FOR THE BOARD
Carolyn Wiggins, Counsel
INTRODUCTION
The veteran served on active duty from January 1998 to June
1998. She had subsequent service in the Air National Guard,
from which she was discharged due to her disability in May
2000.
This appeal arises from an October 2002 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in North Little Rock, Arkansas.
The appellant limited the issues on appeal to service
connection for nephritis, post-traumatic stress disorder and
depression, and a higher initial rating for postoperative
residuals of a herniated nucleus pulposus (HNP) of L5-S1.
38 C.F.R. § 20.200 (2006). The RO in the October 2002 rating
decision assigned a 10 percent rating for the residuals of
the HNP, effective October 12, 2000.
Subsequently, the RO in an August 2004 rating decision
granted a higher rating for the residuals of the HNP to 20
percent, effective June 24, 2004.
The Board of Veterans' Appeals (Board) granted service
connection for a depressive disorder, secondary to the
veteran's serviced connected low back disorder in a December
2005 decision. The issues of a higher rating for the
residuals of the HNP and service connection for nephritis
were remanded for additional development. The additional
development ordered by the Board has been completed. Stegall
v. West, 11 Vet. App. 268 (1998).
During a telephone conversation with VA personnel in April
2006, the appellant withdrew her appeal as to the issue of
service connection for nephritis. The claims folder contains
an April 2006 Report of Contact which includes a written
request to withdraw the claim for service connection for
nephritis. The Board considers the claim has been withdrawn
from appellate consideration. 38 C.F.R. § 20.204 (2006).
Based on the development ordered by the Board, in the July
2006 remand VA granted a higher rating to 40 percent for the
residuals of the HNP, effective March 21, 2006. The only
issue remaining for appellate review is the rating for the
residuals of HNP.
FINDINGS OF FACT
1. Prior to June 2004, the veteran's disability was not
productive of more than slight limitation of motion, nor
muscle spasm, nor moderate intervertebral disc syndrome,
limitation of flexion to less than 60 degrees, combined range
of motion of the thoracolumbar spine to less than 120
degrees, or objective neurologic impairment.
2. From June 2004 to August 2005, the veteran's disability
was not productive of more than moderate limitation of
motion, moderate intervertebral disc syndrome, muscle spasm,
incapacitating episodes requiring bed rest prescribed by a
physician, objective neurologic impairment, or limitation of
flexion to 30 degrees or less.
3. Since August 2005, the veteran's disability was
productive of pronounced intervertebral disc syndrome.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent
for post operative residuals of a herniated nucleus pulposus
prior to June 24, 2004, have not been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5293
(2000).
2. The criteria for an evaluation in excess of 20 percent
post operative residuals of a herniated nucleus pulposus from
June 24, 2004 to August 22, 2005, have not been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Codes 5293 (2000).
3. The criteria for a 60 percent evaluation from August 22,
2005 for post operative residuals of a herniated nucleus
pulposus have been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.71a, Diagnostic Codes 5293 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board must first address VA's duty to notify and assist
claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2006).
The veteran filed her claims for service connection in
October 2000. The RO adjudicated the veteran's claims in an
October 2002 rating decision. A statement of the case was
issued to the veteran in August 2003 which included the new
version of 38 C.F.R. § 3.159. In October 2003, the veteran
notified the RO that she was being treated as an outpatient
at the VA Medical Center at Fort Smith. The RO requested and
received copies of her VA outpatient treatment records.
In January 2004, the RO sent the veteran a letter in
compliance with the notice requirements. It informed her of
the evidence needed to establish entitlement to a higher
rating, the status of her claim, and how VA could assist her
in obtaining evidence. The RO readjudicated her claims in an
August 2004 rating decision. A supplemental statement of the
case was issued to the veteran in August 2004.
The veteran and her mother appeared and gave testimony before
the undersigned Veterans Law Judge at a hearing in September
2005. The Board remanded the claim in September 2005 to
afford the veteran a VA examination of the lumbar spine.
VA sent a letter to the veteran in March 2006 which informed
her of the scheduled examination and where to sent any
additional evidence. Enclosed was a notice of the type of
evidence necessary to establish a disability rating or
effective date for any increase. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). The veteran has been
afforded an opportunity to present testimony, been examined
and evaluated by VA. In July 2006, the veteran indicated she
had additional evidence to submit and requested that VA wait
60 days before transferring the claim to the Board. No
additional evidence has been submitted. The Board has
carefully reviewed the claims folder and found no indication
the veteran received any treatment for her residuals of HNP
other than at the VA at Fort Smith. Those records have been
obtained.
The criteria for rating disability of the spine was amended
during the pendency of the veteran's claim. In December
2006, the veteran's representative submitted a brief on
behalf of the veteran. It included the new and old
regulations for evaluating disability of the spine. In Short
Bear v. Nicholson, 19 Vet. App. 341 (2005)(per curiam), the
Court held that to the extent that any notice may have been
inadequate with regard to timing, the appellant's actual
knowledge of what was needed to substantiate her claim, prior
to adjudication by the Board provided a meaningful
opportunity to participate in the adjudication process.
Consequently, because the appellant or her representative had
actual knowledge of what was required any notice error was
nonprejudicial.
Based on the foregoing, the Board finds that, in the
circumstances of this case, any additional development or
notification would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the claimant); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the claimant are to be avoided).
VA is not required to provide assistance if no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A(a)(2) (West
2002). Therefore, any deficiency in notice to the appellant
as to the duty to assist, including the respective
responsibilities of the parties for securing evidence, is
harmless error. See also, Valiao v. Principi, 17 Vet. App.
229 (2003).
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d);
38 C.F.R. § 3.159(c)(4).
Relevant Laws and Regulations: Disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability. 38 C.F.R. § 4.1 (2005).
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2006).
Effective September 23, 2002, VA revised the criteria for
diagnosing and evaluating intervertebral disc syndrome. 67
Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26,
2003, VA revised the criteria for evaluating general diseases
and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27,
2003). At that time, VA also reiterated the changes to
Diagnostic Code 5293 (now reclassified as Diagnostic Code
5243) for intervertebral disc syndrome.
VA's General Counsel has held that where a law or regulation
changes during the pendency of an appeal, the Board should
first determine which version of the law or regulation is
more favorable to the veteran. In making that determination
it may be necessary for the Board to apply both the old and
the new versions of the regulation. If application of the
revised regulation results in entitlement, the effective date
of entitlement can be no earlier than the effective date of
the change in the regulation. 38 U.S.C.A. § 5110(g) (West
2002). Prior to the effective date of the change in the
regulation, the Board can apply only the original version of
the regulation. VAOPGCPREC 3-00; See also Kuzma v. Principi,
341 F.3d 1327 (Fed. Cir. 2003).
Prior to September 23, 2002, the regulations for rating
intervertebral disc syndrome provided a 60 percent rating for
pronounced intervertebral disc syndrome, with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, and little intermittent relief. A
40 percent rating was provided for severe disability, with
recurring attacks with little intermittent relief. Moderate
disability, with recurring attacks was provided a 20 percent
rating. Mild attacks were given a 10 percent rating. A
noncompensable rating was assigned for postoperative, cured
intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic
Code 5293 (2000-2002).
Prior to September 23, 2002, limitation of motion of the
lumbar spine was rated as
40 percent disabling when severe; 20 percent when moderately
disabling, and 10 percent for slight limitation of motion.
38 C.F.R. § 4.71a, Diagnostic Code 5292 (2000-2002).
Under Diagnostic Code 5293, effective September 23, 2002,
intervertebral disc syndrome (preoperatively or
postoperatively) is to be rated either on the total duration
of incapacitating episodes over the past 12 months or by
combining under Section 4.25 separate evaluations of its
chronic orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation. Incapacitating episodes
having a total duration of at least six weeks during the past
12 months warrant a 60 percent evaluation. Incapacitating
episodes having a total duration of at least four weeks but
less than 6 weeks during the past 12 months warrant a 40
percent evaluation. Incapacitating episodes having a total
duration of at least 2 weeks but less than 4 weeks during the
past 12 months warrants a 20 percent rating. See 38 C.F.R. §
4.71a, Diagnostic Code 5293 (from September 23, 2002,
although renumbered in 2003 to 5243).
For purposes of evaluations, an incapacitating episode is a
period of acute signs and symptoms due to intervertebral disc
syndrome that requires bed rest prescribed by a physician and
treatment by a physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so.
Complete paralysis of the sciatic nerve when the foot dangles
drops, with no active movement possible of the muscles below
the knee with flexion of the knee weakened or (very rarely)
lost is rated as 80 percent disabling. Incomplete paralysis
of the sciatic nerve that is severe with marked muscular
atrophy is rated as 60 percent disabling. Moderately severe
incomplete paralysis is rated as 40 percent disabling.
Moderate incomplete paralysis is rated as 20 percent
disabling. Mild incomplete paralysis is rated as 10 percent
disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2000-
2006).
While the evaluation of intervertebral disc syndrome remained
essentially unchanged since September 2002, in September
2003, a new rating formula for evaluating other spine
impairments was promulgated. These criteria are set forth
below.
Ratin
g
With or without symptoms such as pain (whether or not
it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury or disease
Unfavorable ankylosis of the entire spine
100
Unfavorable ankylosis of the entire thoracolumbar
spine
50
Unfavorable ankylosis of the entire cervical spine;
or, forward flexion of the thoracolumbar spine 30
degrees or less; or, favorable ankylosis of the entire
thoracolumbar spine
40
Forward flexion of the cervical spine 15 degrees or
less; or, favorable ankylosis of the entire cervical
spine
30
Forward flexion of the thoracolumbar spine greater
than 30 degrees but not greater than 60 degrees; or,
forward flexion of the cervical spine greater than 15
degrees but not greater than 30 degrees; or, the
combined range of motion of the thoracolumbar spine
not greater than 120 degrees; or, the combined range
of motion of the cervical spine not greater than 170
degrees; or, muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour
such as scoliosis, reversed lordosis, or abnormal
kyphosis
20
Forward flexion of the thoracolumbar spine greater
than 60 degrees but not greater than 85 degrees; or,
forward flexion of the cervical spine greater than 30
degrees but not greater than 40 degrees; or, combined
range of motion of the thoracolumbar spine greater
than 120 degrees but not greater than 235 degrees; or,
combined range of motion of the cervical spine greater
than 170 degrees but not greater than 335 degrees; or,
muscle spasm, guarding, or localized tenderness not
resulting in abnormal gait or abnormal spinal contour;
or, vertebral body fracture with loss of 50 percent or
more of the height
10
Note: (1) Evaluate any associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, separately, under an appropriate
diagnostic code.
Note: (2) (See also Plate V.) For VA compensation purposes,
normal forward flexion of the cervical spine is zero to 45
degrees, extension is zero to 45 degrees, left and right
lateral flexion are zero to 45 degrees, and left and right
lateral rotation are zero to 80 degrees. Normal forward
flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral
flexion are zero to 30 degrees, and left and right lateral
rotation are zero to 30 degrees. The combined range of motion
refers to the sum of the range of forward flexion, extension,
left and right lateral flexion, and left and right rotation.
The normal combined range of motion of the cervical spine is
340 degrees and of the thoracolumbar spine is 240 degrees.
The normal ranges of motion for each component of spinal
motion provided in this note are the maximum that can be used
for calculation of the combined range of motion.
Note: (3) In exceptional cases, an examiner may state that
because of age, body habitus, neurologic disease, or other
factors not the result of disease or injury of the spine, the
range of motion of the spine in a particular individual
should be considered normal for that individual, even though
it does not conform to the normal range of motion stated in
Note (2). Provided that the examiner supplies an explanation,
the examiner's assessment that the range of motion is normal
for that individual will be accepted.
Note: (4) Round each range of motion measurement to the
nearest five degrees.
Note: (5) For VA compensation purposes, unfavorable ankylosis
is a condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment in
neutral position (zero degrees) always represents favorable
ankylosis.
Note: (6) Separately evaluate disability of the thoracolumbar
and cervical spine segments, except when there is unfavorable
ankylosis of both segments, which will be rated as a single
disability.
Factual Background. In service the veteran complained of
left flank pain and was evaluated for a urinary tract
infection, when none was found and her symptoms persisted
additional evaluations were ordered. In June 1998, a
magnetic resonance imaging (MRI) revealed disc degeneration
at L5-S1 with a small central disc protrusion consistent with
a disc herniation. The veteran was treated conservatively
including having steroid injections for relief of her pain.
After conservative measures failed to control her symptoms,
in April 1999 a hemilaminectomy with excision of the
degenerative disc was performed. Post surgical National
Guard medical records reveal that in June 1999 the veteran
had recurrent pain in her lower back and left leg. August
1999 records noted the veteran had continuing paraspinal
muscle spasm on the left. After evaluating the veteran, a
service physician concluded the veteran had chronicity of
pain with low likelihood of total relief. Exercise, quitting
smoking, and the chronic pain clinic were recommended.
An August 1999 Medical Evaluation Board Summary indicates the
veteran originally injured her back in April 1998.
Postoperatively, the veteran had resolution of her
neurological symptoms, but continued to have paraspinal
muscle spasms. The veteran complained of occasional low back
pain that was not as predominant as her leg pain.
Examination revealed positive palpable spasm about the left
side of her L5-S1. Deep tendon reflexes were 2 plus/4 and
equal bilaterally.
The veteran filed her claim for service connection for a back
disorder in October 2000.
In July 2001, the veteran sought VA treatment for her back
pain. She reported that her symptoms were localized to her
lower back with radiation into the left thigh. She rated her
pain as being 4/10. She was working as a legal assistant.
Prolonged sitting exacerbated her pain. The examiner noted
the veteran walked with a normal gait. Straight leg raising
was negative. She was able to stand on her heels and toes.
Deep tendon reflexes were 2/2, bilaterally. The following
day the veteran was given handouts on low back pain, which
included instructions for muscle relaxation techniques, how
to manage stress and guided imagery for control of pain.
A VA examination of the veteran was conducted in October
2001. The veteran reported that after the surgery she
continued to have back pain and pain in the left leg, that at
times, went into the left foot causing some numbness. Due to
her allergies to many medications she was taking only Tylenol
for the pain. When she bent over sometimes her back would
lock up and she would be unable to stand up again. She had
to sit a relax for a minute before she was able to straighten
back up again. Examination of the lumbar spine revealed she
was able to forward flex to about 80 degrees, at which point
she had pain. She was then able to bend to about 85 degrees.
She could extend backwards to 25 degrees, but had pain. She
could laterally flex to 30 degrees and rotate to 25 degrees,
bilaterally. VA X-rays of the lumbar spine showed the disc
spaces were normally maintained. No bony abnormalities were
seen.
An October 2001, VA psychiatric evaluation report noted the
veteran had almost constant pain.
An April 2003 VA neurological evaluation revealed no apparent
deficits. There was tenderness over the lumbar region
throughout the scar area from the previous laminectomy.
Paraspinous muscles on the left side were tender when she did
any type of range of motion. Examination found no gross
radiculopathy, but the veteran reported symptoms of
radiculopathy after prolonged sitting or standing, that was
consistent with sciatica. An April 2003 VA physical therapy
indicated a TENS unit was issued to the veteran.
An August 2003 MRI revealed moderate desiccation of L5-S1
space with evidence of L5-S1 hemilaminectomy. A small
paramedium L5-S1 disc protrusion minimally effaced the thecal
sac but did not entrap the nerve root. There was no
demonstration of transligamentous herniated nucleus pulposus,
extruded disc fragment or disc protrusion at other levels.
There was no central canal stenosis, neural exit, foraminal
stenosis or lateral recess stenosis. The conus medallaris
was normal. There was no evidence of bony trauma.
VA records in April 2004 reveal the veteran sought assistance
for her back pain. Her chronic back pain limited her
activities. It was making it difficult to maintain a job and
care for her children. She was not taking any medication.
She could not tolerate anti-inflammatories and found that
Tylenol did not help. They discussed trying to avoid opiates
due to her age and her need to care for her two small
children. She did not want to be drowsy when taking care of
them. She was inquiring about any other possibilities. She
had already been advised about exercise, range of motion,
stretching and a TENS unit. But she continued to have
discomfort. Examination revealed she was neurologically
intact. Her back was tender over the perisacral area of her
surgery. She was referred to the Pain Clinic. Notes also
reveal she complained of chronic lower back pain with
numbness to the hip and down the leg.
June 2004 VA records noted the veteran was issued a single
point cane.
A VA examination was conducted in March 2006. The veteran
was experiencing pain, stiffness and weakness which radiated
to the hips, left leg and foot. She had constant pain. She
described her pain as a dull aching with constant numbness of
the great toe and left foot numbness on most occasions. She
also experienced a burning pain on the left which shot into
her thighs. She also had a sharp pain in her left knee. She
also had severe spasm in her lower back through the left hip.
At night she had jerking in both legs which was worse on the
left. She was presently taking methadone for the pain with
no relief. She had severe flare-ups seven or eight times a
day that lasted for up to two hours. Her flare-ups were
precipitated by walking, standing, and the act of lying down.
Her pain was alleviated by massage, rest, and muscle
stretches which had been prescribed. During flare-ups she
estimated she had an additional 75 percent limitation of
motion and functional impairment. The VA examiner noted the
veteran had lost 35 pounds since January of 2005. She used a
cane. She was able to walk about 50 feet before having to
stop and rest, this took her about two minutes. She was
unsteady on her feet and had fallen in March of 2006. The
veteran's work had been significantly affected. She had been
assigned to different duties. She had been tardy and had
increased absenteeism.
In March 2006, VA physical examination of the veteran
revealed the veteran's posture was slightly forward. Her
gait was antalgic. She held her head slightly forward.
There was moderate kyphosis of the thoracic spine. Range of
motion of the thoracolumbar spine was as follows:
Forward Flexion from 0-30 degrees with pain beginning at 20
degrees.
Extension was from 0-10 degrees with pain beginning at 5
degrees.
Left Lateral Flexion was from 0-20 degrees with pain
beginning at 20 degrees.
Right Lateral Flexion was from 0-15 degrees with pain
beginning at 15 degrees.
Left Lateral Rotation was from 0-10 degrees with pain
beginning at 10 degrees.
Right Lateral Rotation was from 0-25 degrees with pain
beginning at 20 degrees.
Sensory evaluation revealed decreased touch sensation from
the scar in the lumbar area to the left lateral area of about
three centimeters. There was no sensation to touch in the
left great toe. There was intact sensation in the second
through fifth toes, the plantar surfaces and the dorsal
surface of the foot. There was no Babinski response in the
left foot. There was mild atrophy of the gluteus muscle on
the left side. There was decreased strength in the left
extremity.
At her hearing September 27, 2005, the veteran testified that
she had last seen her physician 5 weeks earlier, (which would
be approximately August 22, 2005), and that she had not had
any appointment for 2 and a half years prior to that date.
She described her condition at the August 2005 appointment as
similar to the findings described in the March 2006 VA
examination report.
Analysis: After reviewing the foregoing, the Board concludes
that effective from August 22, 2005, the veteran met the
criteria for a 60 percent evaluation under the provisions of
Diagnostic Code 5293 for pronounced intervertebral disc
syndrome that were in effect at the time the veteran
initiated her claim. The criteria for an evaluation in
excess of 10 percent prior to June 2004, or in excess of 20
percent prior to August 2005 were not met.
As indicated above, the evidence prior to June 2004 showed
that while the veteran complained of discomfort, she was
consistently shown to be either neurologically intact or with
no neurologic deficits. When tested, her range of motion was
nearly full, with 80 degrees of flexion, 30 degrees of
lateral flexion, and 25 degrees of rotation. Given this, her
limitation of motion would be considered no more than slight,
and with her relevant muscles being described as no more than
tender, as opposed to exhibiting spasm, she did not meet the
criteria for an increased rating based on limitation of
motion (Diagnostic Code 5292) or as due to lumbosacral strain
(Diagnostic Code 5295). Similarly, with the evidence
reflecting she was intact neurologically, no more than mild
impairment is demonstrated as measured under the provisions
of Diagnostic Code 5293, for intervertebral disc syndrome.
The veteran also failed to meet the criteria for an increased
rating under the criteria that came into effect in September
2002, or September 2003. Specifically, incapacitating
episodes (as that is defined in the rating schedule) is not
shown, nor did the record show limitation of flexion to less
than 60 degrees, combined range of motion of the
thoracolumbar spine to less than 120 degrees, or muscle spasm
or guarding severe enough to result in an abnormal gait or
abnormal spinal contour. Likewise, with no objective
neurologic impairment, a combination of orthopedic and
neurologic manifestations could not yield an evaluation
greater than that already assigned during this period.
For the period between June 2004 and August 2005, the record
reflects that the veteran was seen for psychiatric care, (and
she is service connected for a psychiatric disability,
currently rated at 50 percent), but there are virtually no
records of treatment for her back disability. Although the
psychiatric treatment records reflect the veteran complained
of back pain, this evidence does not reflect the above
described criteria for a rating in excess of 20 percent were
met under any relevant Diagnostic Code.
At the March 2006 VA examination, the veteran exhibited what
was described as severe spasm, and a forward bent posture,
with an antalgic gait. She likewise had lost sensation in
her left great toe, and left sided gluteus muscle atrophy was
noted. Her lumbar spine range of motion was also very
limited, with flexion only to 20 degrees, and she described
multiple flare-ups each day, which could last up to a couple
hours. In the Board's view, this more nearly reflects the
presence of pronounced impairment under the provisions of
Diagnostic Code 5293, as had been in effect from when the
claim was initiated. Because the veteran testified in
September 2005, that similar findings were noted at her
outpatient visit in August 2005, it is reasonable to conclude
she met the criteria for a 60 percent rating under this Code
from that time.
An evaluation in excess of 60 percent is not warranted, since
unfavorable ankylosis of the entire spine is not shown, which
would warrant a 100 percent evaluation under the current
rating criteria. Similarly, it is not shown that the veteran
experiences what could be described as more than moderate
incomplete paralysis of the sciatic nerve effecting the left
lower extremity, or more than mild incomplete paralysis of
the sciatic nerve effecting the right lower extremity, which
when combined with a 40 percent evaluation for limited motion
would also only yield a 60 percent rating. See 38 C.F.R.
§ 4.25.
ORDER
A disability rating in excess of 10 percent for post
operative residuals of a herniated nucleus pulposus prior to
June 24, 2004 is denied.
A disability rating in excess of 20 percent for post
operative residuals of a herniated nucleus pulposus for the
period from June 24, 2004 to August 22, 2005 is denied.
A 60 percent rating for post operative residuals of a
herniated nucleus pulposus from August 22, 2005, is granted,
subject to the law and regulations governing the payment of
monetary benefits.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs